Citation Nr: 1510985
Decision Date: 03/16/15 Archive Date: 03/27/15
DOCKET NO. 08-06 701A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to a compensable extra-schedular rating for bilateral hearing loss disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J.R. Bryant
INTRODUCTION
The Veteran served on active duty with the U.S. Navy from July 1975 to July 1978.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2010, the Veteran testified before the undersigned during a video conference Board hearing. A transcript of the hearing has been associated with the claims file.
This case was previously remanded for further development in September 2010 and June 2012. In December 2013, the Board denied entitlement to a compensable disability rating for the Veteran's bilateral hearing loss on a schedular basis, but remanded the issue of whether referral for consideration of an extra-schedular rating was warranted. The case has now returned to the Board for further appellate action.
In the September 2010 remand, the Board referred to the Agency of Original Jurisdiction (AOJ) a claim for service connection for recurrent ear infections. To date, it does not appear that this claim has not been adjudicated. Thus, it is again referred to the AOJ for appropriate action.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.
FINDING OF FACT
Bilateral hearing loss disability is contemplated by the applicable rating criteria and does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for an extra-schedular evaluation for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code (DC) 6100 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Assist and Notify
VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. He was notified via letters dated in April 2007, January 2010, and January 2014 of VA's duty to assist him in substantiating his claim, and the effect of this duty upon his claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). These letters also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. To the extent that any letter did not comply with all dictates of Dingess, for the claim being denied, any question as to the appropriate disability rating or effective date ultimately is moot. In March 2014, the Veteran, through his representative, submitted an expedited processing request indicating he did not have additional relevant evidence to submit. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim.
VA has also satisfied its duty to assist the Veteran in the development of his claim. As stated previously, this matter has been remanded multiple times and the development ordered by the Board has been completed sufficiently so that the Veteran's claim may finally be adjudicated. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 2 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In-service treatment records and pertinent post-service records have been obtained and are viewable in VBMS. The Veteran has also submitted potentially relevant documents and argument in support of his claims, including personal statements. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). As instructed by the Board, the AOJ obtained several medical opinions between 2007 and 2011. The Board finds that together the VA opinions are thorough and adequate and provide a sufficient basis upon which to base a decision as they provide the necessary testing data to determine the current severity of the Veteran's service connected hearing loss to allow for effective evaluation of this disability, including a thorough discussion of the effect of his symptoms on his functioning. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
Specifically, with regard to claims for service connection for hearing loss, a Compensation and Pension (C&P) hearing examination worksheet was revised to include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept. of Veterans Affairs Veterans, Apr. 24, 2007); see also 38 C.F.R. § 4.10. The United States Court of Appeals for Veterans Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
Here the VA audiologists elicited information from the Veteran related to the functional effects caused by his bilateral hearing loss. The specifically noted the Veteran's specific complaints as to the effect of his hearing loss on his occupation as an address management system specialist with the Post Office. That being said, in Martinak, the Court noted that, even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Neither the Veteran nor his representative has alleged any prejudice caused by a deficiency in any examination here. So, there is adequate medical evidence of record to make a determination in this case.
Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. This is especially true in this instance, considering there already have been several remands of this claim to try and further develop it.
Law and Analysis
The Veteran contends that his service-connected hearing loss is more disabling than is reflected in the current noncompensable disability rating. He has indicated that his hearing has progressively worsened over the years to the point that he cannot perform his job or function normally without the constant use of hearing aids.
As discussed in the Introduction, the Board has already adjudicated the matter of entitlement to a compensable disability rating for hearing loss on a schedular basis, and determined that no higher rating was warranted. See December 2013 Board Decision. Thus the only matter remaining for consideration is whether a compensable disability rating is warranted on an extra-schedular basis.
Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85.
The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86.
The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extra-schedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).
An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008).
If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Floyd v. Brown, 9 Vet. App. 88, 94, 115-116 (1996). When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.
In the current appeal, the record contains audiological evaluations dated in 2007, 2009, 2010, and 2011, which have been summarized in the prior December 2013 Board decision. [Therefore, there is no need to recite the findings of these examinations in detail in this decision.] In general the findings from these four VA audiological examinations, taken at various times during this appeal period, show entitlement to only a noncompensable schedular disability rating. The Board has not found within the claims file any evidence of a compensable schedular rating for hearing loss during the time period of this appeal.
The Board has also reviewed the Veteran's VA outpatient treatment reports which show treatment for hearing loss. Unlike the VA examination reports, these records do not include audiograms or the comprehensive information necessary to evaluate his disability in the context of the rating criteria. They do, however, show that he was periodically monitored by VA audiology for routine hearing aid adjustments and repairs.
During VA audiological examination in November 2009, the Veteran complained that he felt his decreased hearing was progressively getting worse. He told the examiner that he had difficulty hearing at work or hearing passengers in a motor vehicle. He also believed that his hearing loss restricted him from going to the movies. It was noted that post-service the Veteran had worked as a loan manager, for a construction company doing supplies and clerical work, and for the post office. He denied any noisy hobbies. He also told the examiner that he got two to three ear infections a year that he believed might be attributed to his hearing aids, which he had been wearing since the late 1980s. He also denied ear surgery, otalgia, any balance problems, or head trauma. He did not complain about tinnitus. The accompanying audiological results did not satisfy the criteria for a compensable rating. 38 C.F.R. §§ 4.85, 4.86.
During his June 2010 Board hearing, the Veteran testified that he needed to wear his hearing aids in order to hear. He also testified to problems hearing at work and at home. He said that he had to utilize the closed captioning device to understand what was going on in a television program and that at work at the post office co-workers had to throw Nerf balls into his cubicle to get his attention. He also stated that he had been reprimanded for performing some task which he normally did because he never heard the command not to do it in that particular instance. The Veteran also testified that it was depressing sometimes to be left out of conversations because of his disability.
When examined by VA in July 2010, the Veteran told the examiner that he felt that his hearing loss caused him difficulty hearing at work; that he needed to use the closed captioning device on the television; that he had to turn up the volume on the television louder than others liked; and that he often had to ask family members to repeat themselves which lead to arguments. The Veteran denied any recreational noise exposure. It was noted that post-service he had worked as a loan manager, a construction supply clerk, and a postal worker. He denied any recreational noise exposure. He is currently employed full time at the Post Office as address management system specialist. The accompanying audiological results did not satisfy the criteria for a compensable rating. 38 C.F.R. §§ 4.85, 4.86.
The Veteran underwent a VA audiological examination in March 2011. At that time he told the examiner that he felt his hearing was always getting gradually worse. He also noted that he was having difficulties at work. The examiner referred to the previous VA audiological examinations for details of those work problem complaints. It was also noted that the Veteran was unable to wear his hearing aids at home as they picked up more background noise than the conversations of other people. No history of occupational or recreational noise exposure was noted. He also noted that at work the hearing aids pick up more background noise than people and he has significant difficulty following conversation. The accompanying audiological results did not satisfy the criteria for a compensable rating. 38 C.F.R. §§ 4.85, 4.86.
Pursuant to a December 2013 Board remand, the Veteran was sent a letter explaining how he could substantiate his claim for benefits, including Section 5103 Notice. That letter contained a 38 U.S.C. § 5103 Notice Response, dated March 26, 2014. The response letter noted that the Veteran had 30 days from the date of the letter to respond before the AOJ would decide his claim. There was no response from the Veteran and no additional evidence was received. In March 2014, the Veteran's representative signed an Expedited Processing Waiver of the 30-day wait period and indicated that there was no additional evidence to submit.
The Board finds that there is no basis for referral for consideration of an extra-schedular rating. See 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluations for the Veteran's hearing loss are not inadequate. He has not identified any factors which may be considered to be exceptional or unusual so as to render impractical the application of the regular schedular standards, and the Board has been similarly unsuccessful. In this case, the symptoms described by the Veteran and in the clinical records fit squarely within the criteria found in the relevant diagnostic code (6100) used for evaluating hearing loss. The rating criteria contemplate not only his symptoms but the severity of the condition, and provide an opportunity for the assignment of still higher evaluations for his service-connected hearing loss. Unfortunately the required manifestations have not been shown in this case. Moreover, no other factors (such as frequent hospitalizations, unusual clinical presentation, or any other factors, which take the hearing loss disability outside the usual rating criteria) have been identified, and none is evident in the record on appeal. Rather, it appears that the Veteran's arguments have focused squarely on whether his hearing loss causes marked interference with his employment.
Although, the above evidence unquestionably shows that his service-connected hearing loss has had an adverse impact on his employability, this alone is not sufficient to warrant the assignment of an extra-schedular rating, which is premised on an exceptional or unusual disability picture. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Thus, in order for an extra-schedular rating to be assigned there must be something which takes the case out of the norm.
That said, the Veteran does not argue, and the evidence does not suggest, that his bilateral hearing loss manifests in symptoms other than diminished hearing acuity, particularly in background noise. Also, his complaints of difficulty hearing at work have been acknowledged and considered by the various VA examiners. Moreover, according to the March 2011 VA audiologist, the Veteran's long history of sensorineural hearing loss has remained stable at least since he was last fit with amplification in 2009, which suggests at least partial correction of the disability afforded by use of hearing aids. She also urged the Veteran to come in for follow-up so that he could enjoy better function from his most recently issued VA hearing aids.
The Board is indeed sympathetic to the difficulties that the Veteran's hearing loss may cause him in his employment. The standard for demonstrating "marked" impairment in employment is a relatively high bar to meet, and all indication is that the Veteran is not substantially precluded from carrying out occupational duties, and fortunately remains gainfully employed on a full-time basis. There was no indication from any VA examiner that the hearing loss significantly affects vocational potential or limits participation in most work activities. He has not indicated or suggested that his hearing loss has caused him to miss any time from work. Neither is there any indication of demotion or special accommodation having to be made to compensate for his hearing loss. Nor has there been substantial outside medical treatment or other compelling factors which brings this case within the realm of exceptional disability.
In other words, the evidence does not support the proposition that the Veteran's service-connected hearing loss disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of an extra-schedular evaluation is not warranted. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
(CONTINUED ON NEXT PAGE)
ORDER
A compensable extra-schedular rating for bilateral hearing loss disability is denied.
____________________________________________
K. R. FLETCHER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs